Criminal Law AO1s - OCR, A-LEVEL

murder

“the unlawful killing of a reasonable creature in being under the king’s peace with malice aforethought”

the actus reus of murder

the unlawful killing of a reasonable creature in being under the king’s peace

murder: unlawful killing

the killing is against the law. sometimes it can be lawful e.g: doctors (Re A), in the army or in self defence (Martin)

the victim must die (factual and legal causation must be proved)

murder: intervening acts

there must be no intervening acts that break the chain of causation e.g: egg shell skull (Blaue), bad medical care (Jordan, third party involvement (Malcherek) or v’s free will (Kennedy)

murder: reasonable creature in being

a human, not a foetus (Ag Ref). the victim has to be “independent from the mother” and not brain dead either

murder: under the kings peace

not in wartime

murder: mens rea

malice aforethought

this means intention to kill (express malice) or cause gbh (implied malice) (Vickers)

the intention can be indirect (Woollin) meaning d foresees death/gbh as virtually certain

intention can also be direct - d wants the end result to happen

MOHAN

what type of defence is loss of control

partial - reduces murder to manslaughter if successful

where does the defence of loss of control come from

Section 54 (1) of the Coroners and Justice Act 2009

loss of control: element one

d must suffer a loss of control

this must be a total loss of control and doesn’t have to be sudden, but revenge is not considered a LoC (Jewell)

loss of control: element two

the loss of control must come from a qualifying trigger

these come under Section 55 and has to be either:

a. a fear of serious violence (Ward - to yourself or another person)

OR

b. things said it done are of extremely grace character and give d a justifiable sense of being seriously wronged (Zebedee)

loss of control: what is not a qualifying trigger?

sexual infidelity alone (Clinton)

loss of control: element three

a person of d’s age and sex with a normal degree of tolerance and self restraint and in d’s circumstances would have acted in the same or a similar way to d (Christian)

being drunk is not a relevant circumstance and neither is having a bad temper

what type of defence is diminished responsibility?

a special defence and a partial defence

d has to prove DR on the balance of probability and it will reduce murder to manslaughter if successful

where does diminished responsibility come from?

Section 52 of the Coroners and Justice Act 2009

diminished responsibility: element one

d must suffer from an abnormality of mental functioning from a recognised medical condition

must be a condition recognised by the WHO eg depression, battered spouse syndrome (Ahluwalia), paranoid personality disorder (Squelch)

diminished responsibility: who defined element one

Byrne: an abnormality is “a state of mind that a reasonable man would find abnormal”

diminished responsibility: element two

the abnormality must substantially impair d’s ability to understand the nature of their conduct e.g: delusions, form a rational judgement e.g. schizophrenia or exercise self control e.g sexual psychopathy

diminished responsibility: what does “substantially” mean

Golds: doesn’t have to be a total impairment but it must be more than minimal

diminished responsibility: IF RELEVENT IN SCENARIO

if d is just intoxicated, they will not receive the defence

however, if d has been diagnosed with ADS, they may be granted the defence is the alcohol has damaged their brain (Wood)

diminished responsibility: element three

the abnormality must provide an explanation for the killing

in other words, it must be the cause of the killing

diminishes responsibility: abnormality + intoxication

if d is intoxicated AND has an abnormality, the jury then have to decide whether d would have killed without the alcohol (Dietschmann)

what is an attempted crime

when d tries to and intends to commit the crime, but fails

where do attempted crimes come from

Section 1 of the Criminal Attempts Act 1981

attempted crimes: actus reus

d commits an act that is more than merely preparatory (MTMP)

attempted crimes: what does MTMP mean

that d has done more than just prepare e.g Jones

attempted crimes: how is MTMP defined (2)?

Gullefer: has d has embarked on the crime proper?

Geddes: has d moved from planning to execution?

attempted crimes: mens rea

intention to commit the offence

MOHAN

attempted crimes: intention/recklessness

conditional intent is still intent (AG Ref)

recklessness isn’t enough (Millard and Vernon), but has been used in specific, rare cases (Khan and Others)

attempted crimes: IF RELEVANT

the mr for attempted murder had to be intentional to kill (White), not the intention to cause gbh

attempted crimes: final point - Shivpuri

d can be guilty of attempting an impossible crime (Shivpuri)

what is UDAM

unlawful dangerous act manslaughter

type of involuntary manslaughter (Larkin)

UDAM: element one

d must commit an unlawful act

must be a positive act and not an omission (Lowe)

must be criminal (Franklin)

unlawful act can be directed at property (Goodfellow)

UDAM: element two

the unlawful act must be dangerous

The Church Test “a sober and reasonable person would foresee the risk of some harm, albeit not serious harm”

UDAM: what does harm mean

physical harm, however, fear is included but only if it’s obvious that the victim is frail

UDAM: element three

the unlawful and dangerous act must cause death

factual and legal causation must be established

• the but for test (white/pagett)

• kimsey

UDAM: IF RELEVANT (intervening acts)

must not be any intervening acts that break the chain of causation e.g pre existing medical condition (Blaue), bad medical care (Jordan), v’s free will (Kennedy), third party involvement (Malcherek)

UDAM: element four

d must have the men’s rea for the unlawful act (Newbury + Jones) and not the death

GNM: element one

d must owe v a duty of care e.g doctor patient (Adamako - contractual) and d still owes a duty even if their activity is illegal (Wacker)

GNM: element two

d breached their duty of care - d has failed to meet the standard of a reasonable person (doctor to a reasonable doctor - Bateman, Adomako)

GNM: element three

at the time of the breach, there was a serious and obvious risk of death (Broughton)

it has to be a risk of death and not serious injury (Misra), obvious means it’s a clear risk that is immediately apparent (Rose)

GNM: element four

it was reasonably foreseeable at the time of the breach that there was a serious and obvious risk of death

GNM: element five

the breach must cause death

factual (White) and legal causation must be proved (Kimsey)

there mustn’t be any intervening acts e.g: pre existing medical condition (Blaue), bad medical care (Jordan) etc etc

GNM: element six

the breach is so gross that it’s criminal and not civil

gross means ‘so bad’

Adomako described it as “abysmal” and Bateman says it’s behaviour that shows such disregard for the life and safety of others as to be deserving of punishment

where does assault come from?

section 39 of the criminal justice act 1988

how is assault defined?

“d intentionally or recklessly causes v to apprehend immediate unlawful violence”

assault: actus reus

d causes v to apprehend immediate, unlawful violence

assault: apprehend

apprehend means that v fears or expects violence

assault can involve an action like raising a fist, words alone (Constanza), silence can also amount to an assault (Ireland)

assault: immediate + negating

smith defined immediate as imminent

weds can negate an assault (Light was convicted of assault, Tuberville wasn’t)

assault: men’s rea

intention or subjective recklessness

MOHAN + CUNNINGHAM

where does battery come from?

section 39 of the criminal justice act 1988

how is battery defined?

d intentionally or recklessly applies unlawful physical force to another

battery: actus reus

d applies unlawful physical force to another

battery: force

force means the slightest touching (Collins and Wilcock), clothes (Thomas)

force can be indirect - d doesn’t need to touch v (K)

battery: 6th and 7th point

battery can be a continuing act (Fagan)

can also be committed by an omission (Santa Bermudez)

battery: mens rea

intention or subjective recklessness

MOHAN + CUNNINGHAM

where does ABH come from?

section 47 of the offences against the persons act 1861

ABH: actus reus

assault or battery occasioning actual bodily harm

how is ABH defined?

miller: any hurt or injury calculated to interfere with v’s health or comfort

ABH: what classes as ABH?

bodily includes the mind (Chan Fook)

cutting hair is ABH (Smith)

temporary loss of consciousness (T)

silent phone calls (Ireland)

can be indirect (Roberts)

ABH: mens rea

only need to prove the mens rea for an assault or battery - there’s no need to prove that d intended or was reckless as to the ABH

where does S20 GBH come from?

section 20 of the offences against the persons act 1861

what is the definition of S20 GBH?

d maliciously wounds or inflicts grievous bodily harm

S20 GBH: actus reus

d wounds or inflicts grievous bodily harm

S20 GBH: define wound

a wound is a break in the continuity of the skin (Eisenhower)

S20 GBH: define “inflicting grievous bodily harm”

inflicting means causing

grievous means serious harm (Saunders)

bodily includes the mind (Burstow)

S20 GBH: bruising a baby

Bolton says you must consider who the victim is when looking at how serious the harm is

S20 GBH: extended…

it’s been extended to include STIs (Dica-HIV), (Golding)-herpes

GBH doesn’t need to be life threatening

S20 GBH: mens rea

maliciously - d intends some harm or is reckless as to some harm

d foresees the risk of some harm, but takes the risk anyway - CUNNINGHAM

where does S18 GBH come from?

section 18 of the offences against the persons act 1861

S18 GBH: actus reus

wounding or causing grievous bodily harm

S18 GBH: wound

a wound is a break in the continuity of the skin (Eisenhower)

S18 GBH: what is GBH?

grievous means serious (Saunders), now includes mental harm (Burstow)

S18 GBH: bruising a baby

Bollom says you must consider who the victim is when looking at how serious the harm is

S18 GBH: extended….

S18 has been extended to include STIs (Dica-HIV) (Golding-herpes)

GBH doesn’t have to be life threatening

S18 GBH: mens rea

d must intend serious harm

MOHAN

where does theft come from?

Section one of the Theft Act 1968

how is theft defined?

d dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it

what is the actus reus of theft?

d appropriates property belonging to another

what is section 3 of the theft act

appropriation: any assumption of the rights of the owner

d only needs to assume one of the rights (Morris, Anderton) - the moment d assumes a right E.g. touching, they have appropriated (Gomez)

appropriation - if relevant

accepting a gift from a vulnerable person can be considered an appropriation (Hinks), it can also be an appropriation even if the owner consents (Lawrence)

what is section 4 of the theft act?

property: money and all other property real and personal including things in action and other intangible property

theft: property - if relevant

information is not property (Oxford v Miss), wild flowers are not property, but flowers to sell are, wild animals aren’t property, but if they’re tamed, they are

what is section 5 of the theft act?

belonging to another: includes those in possession or control of the property

d can be guilty of stealing their own property (Turner)

theft: BTA - if relevant

bins - Ricketts, money for a particular purpose - Davidge, d must restore a mistake (AG Ref)

what is the mens rea of theft?

SECTION 2

dishonestly: the test is objective (Ivey, Barton and Booth) - is d dishonest by the standard of a reasonable honest person?

d is not dishonest if they: believe they have a legal right to the property (S2 (1) (a)), the owner would consent to the taking (S2 (1) (b)), or they have taken reasonable steps to find the owner (S2 (1) (c).

what is section 6 of the theft act?

d must intend to permanently deprive the other of the property - borrowing an item and reducing its value is equivalent to an outright taking (Lloyd)

treating an item as your own to dispose of regardless of the others’ rights also falls under section 6

where does robbery come from?

section 8 of the Theft Act 1968

what is the actus reus of robbery?

the actus reus of theft must be present - if there’s no theft, there’s no robbery (Robinson) - d must appropriate property belonging to another

robbery: force

the threat of force must be used in order to steal

d must use force or the threat of force - force can be minimal and is an ordinary word for the jury to decide (Dawson), wrenching is force (Clouden), snatching a cigarette isn’t force (P)

the threat of force can be on any person

robbery: section 8 (force)

force must be used immediately before or at the time of the theft - Lockley says it can be used in order to escape as theft is a continuing act of appropriation

what is the mens rea of robbery?

the MR for theft - d must be dishonest (Barton and Booth) and intend to permanently deprive the other of the property

AND

d must have intention to use force or the threat of force in order to steal - MOHAN

what is the structure of a robbery AO1?

1. Where does it come from?

2. Actus reus

3. Force

4. Timing of force

5. Mens rea

where does burglary come from?

Section 9 of the Theft Act 1968

there are two types: section 9(1)(a) and section 9(1)(b)

what is section 9(1)(a) of burglary?

d enters a building or part of a building as a trespasser with intent to steal, cause criminal damage or inflict GBH

burglary: what is the actus reus of section 9(1)(a)?

ENTRY - Ryan says this is an ordinary word and that entry doesn’t have to be substantial or effective

d must enter a building or part of one - Leathley defines a building as having some permanence and being of a considerable size - houseboats are included

part of a building includes going behind a counter (Walkington)

burglary: what must d be?

a trespasser - someone who doesn’t have permission to be there

includes people with keys who go beyond their permission (Barker or Jones and Smith)

what is the mens rea of burglary?

they must know or be reckless as to the trespassing (Collins), they must also intend the ulterior offence of theft, GBH or criminal damage

burglary: what is the difference between section 9(1)(a) and section 9(1)(b)?

section 9(1)(a) - d doesn’t have to even attempt one of those three crimes, but does have to have formed the intention before entering

section 9(1)(b) - d has already entered as a trespasser and then forms intent to commit GBH or theft - they must at least attempt the theft or GBH, doesn’t include criminal damage

what’s the structure of burglary AO1?

1. Where does it come from + 2 types

2. Section 9 (1)(a) + actus reus

3. Enter a building

4. Trespasser

5. Mens rea

6. Difference between a and b